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Elizabeth Denham's speech at the Holyrood FOI Conference in Scotland on 1 December 2016.

Intro / biog

Good afternoon, it is lovely to be in Edinburgh here in the heart of Scotland.  I have been here for a couple of days now and it has really reminded me of being in Canada.  I know it seems to have been postponed by the current mild weather but you do have proper winters here, with proper snow and hills that come right into town.   

I think today’s conference’s theme is very relevant. Freedom of Information legislation is adapting to meet changes around how information is produced and disseminated in Scotland, and the opportunities and challenges associated with these changes is important. 

Yesterday, I spent the day with colleagues in our Scotland office and took the opportunity to attend the Scottish Government’s Data Protection Forum, where I met specialists from a range of Agencies. I also met with Keith Brown, the Cabinet Secretary for Economy, Jobs and Fair Work, at the launch of his Nuisance Calls Commission, and I was delighted to visit your Parliament where I met with the Deputy First Minister and a number of Parliamentary officials.

And now I’m here with you. My career started as a professional archivist. That’s what I studied at university, many miles away in British Columbia, and it led me to my then-dream job: City Archivist for City of Calgary, Alberta, shortly after the city had hosted the 1988 Winter Olympics. I was surrounded by documents: records, blueprints, posters, special artefacts and thousands of photographs and films. I loved chronicling the life of the city, and constructing a tangible memory that people could access.

Some years later – I know I’m among friends but I’ll reserve the right not to say precisely how many years –convincing people that public access to records is important is still a key part of my job.

Since then, I’ve worked as a regulator in the privacy and access area for more than twelve years, across four different jurisdictions. Independent of how the letter of the law varies from jurisdiction to jurisdiction, I’ve seen tried-and-true access principles that Commissioners must defend. That doesn’t just mean the big stuff: the importance of access to information, the importance of proactive transparency from government, the balance between those rights and the need for government to have room to do its job. It also means things like proper information management and retention policies that don’t just sit on a shelf gathering dust, but on which staff are properly trained and which are properly followed. 

Because this matters. It’s easy when we work so closely with the law to get so caught up in the minutiae, and forget how important these rights are.

In the past few weeks, we’ve seen headlines of problems at Scottish maternity wards and of post Brexit shortfalls at Scottish local authorities. These are not just newspaper stories. The information people can access holds those in power to account. It asks questions of those who run our society, it challenges the country to be run better, to be more efficient. 

Our work in this room is to oil those wheels, to keep the machine running in changing times. And in an era where people increasingly do not trust government institutions, protecting this tool for citizens to get the transparency they want is a crucial job. I want to talk to you now about my take on some of the changes we’ll be facing in the next two years – because we can expect a few. I also want to discuss some of the changes I’ll be pushing for, to make sure our law keeps up with our changing world. 

The role of digital

The biggest change we face, which was well discussed today, is to consider FOI in a digital world. Digital can help us to make our handling of requests more efficient, and can provide greater access to information.

That’s positive, because as technology evolves, new ways of doing things bring uncertainty. If governments want projects in areas such as open data and big data to be successful, they need public buy-in. My experience in Canada was that there was a lack of transparency for data activity on the part of government, and a lack of knowledge about government’s data activities in the public mind. That means the public is, at most, superficially aware of it. 

If government wants work in this area to be a success, it needs the social license to do it. Transparency around what public authorities are doing, and what they plan to do, is a vital part of this.

Digital communication creates more records, in fact we’re drowning in them, but less permanent records, and that is a worry for those of us who believe in access rights. FOI can only work if the right records are created in the first place. Smart phones, instant messaging and social media challenge our ability to ensure records and decisions are documented and preserved. We risk allowing employees to become their own records managers, with the inevitable end result that less information is preserved for the public in many, many cases.

Our job is not only to facilitate access, but to help make sure the records exist in the first place. To keep talking about the duty to document.  To demand a legislative solution to meet the needs of the digital age. 

GDPR

We’ve already seen some legislation adapting to the digital world. The General Data Protection Regulation, so many years in the making, will happen in the UK, with the government confirming implementation in May 2018. Wearing my FOI hat, the changes are less dramatic for FOI than they are for data protection. The definitions of personal data and the principles for its use are essentially the same, and how data protection interacts with FOI will be very similar to now.  

But what could change – and what could be an opportunity for FOI practitioners – is that GDPR should increase the profile of information rights in your organisations.  I’m sure few people in this room would say ‘no’ to more resources and commitment to records management.  There is a chance to ride on the coat tails of the GDPR.

FOI commission

Another area of potential change is in response to the UK government’s FOI commission. The review was carried out before I arrived at the ICO, but looking from the outside, it seemed the response to the commission’s findings was broadly positive. I think there are good suggestions in there: better compliance stats, better monitoring of publication obligations.

The suggestion getting the most attention in the past month has been the removal of the First Tier Tribunal, which was backed by a Ministry of Justice report.

My predecessor Christopher Graham set out his views on this to the Commission, giving guarded support for a system where appeals can only be made on a point of law. Again, there’s a balance here. We don’t want a system that unduly restricts access or causes a chill in requestors, but nor do we want an expensive system that sees a regulator’s consideration of the facts repeated wholesale in the courts.

Limiting appeals to a point of law has precedent in other jurisdictions –like in Scotland and Canada. My experience in Canada was that it can work well, but it’s a different way of doing things. I look forward to continuing to talk to your excellent Commissioner about your experience of how it works here.

Outsourcing

I’d like to see changes beyond those proposed in the Commission. Top of my priority list is for government to do more to include private bodies that are basically doing work on behalf of the public.  I hear that you have been told that Housing Associations will be included in FOISA and I look forward to talking about similar action with Westminster.

The public expects to know how its money is being spent. It should make little difference whether that’s a local council providing a swimming pool, or a local council paying a private company to run a swimming pool.

We’ll be studying this subject in the coming months, and will be looking for input ahead of a report to parliament on transparency in outsourcing in 2017.

Scotland

It won’t have escaped your notice that many of these suggestions are already in place here in Scotland. The publication of stats around FOI performance is ahead of the Commission’s recommendation, as is a system that restricts appeals against decisions of the Scottish Information Commissioner to those querying a point of law. And the extension of FOISA to bodies like private prisons and grant-aided schools is a step in the direction of access following the public pound.

International conference

2017 promises to be a busy year. As you’ve heard, I’m pleased to be able to say that the Scottish Information Commissioner and my office will be working side by side to host the International conference of Information commissioners in Manchester in September 2017. 

Today, we have over 100 access to information laws around the world protecting the public’s right to know. It’s a right started in Sweden 250 years ago this year.  

Freedom of Information should be a global right, and this will be an exciting opportunity to bring together 300 FOI specialists from around the world. We want to make sure that as well as the commissioners and ombudsmen from across the planet, we also maximise the opportunities for our own domestic experts. That includes not only practitioners, but also academics and the civil society groups that are such an important part of our community.

Bringing the information access world together on our shores is an exciting opportunity, and I look forward to working with Rosemary to make it a success.

Conclusion

In closing, I would like to acknowledge the co-operation which exists between the Scottish Information Commissioner’s office and the ICO. We share the same vision.

I particularly want to acknowledge the dedication and leadership of Rosemary Agnew in the information rights field.  She was the first commissioner to come and visit me when I started earlier this year – a visit I truly appreciated. All of us are privileged to have someone of her experience and expertise in place.